Effective Date of Rule: Thirty-one days after filing.

     Purpose: Allows the use of oral fluids in prescreen drug and alcohol testing.

     Citation of Existing Rules Affected by this Order: Amending chapter 260-34 WAC, Drug and alcohol testing of licensees.

     Statutory Authority for Adoption: RCW 67.16.020.

      Adopted under notice filed as WSR 11-03-062 on January 18, 2011.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 2, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 2, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Date Adopted: March 10, 2011.

Douglas L. Moore

Deputy Secretary

OTS-3857.1

AMENDATORY SECTION(Amending WSR 09-03-009, filed 1/8/09, effective 2/8/09)

WAC 260-34-020   Drug and alcohol violations.   No licensee or applicant, while acting in an official capacity or participating directly in horse racing, will commit any of the following violations:

     (1) Be under the influence of or affected by intoxicating liquor and/or drugs, have an alcohol concentration of 0.08 percent or higher, or have within their body any illegal controlled substance while on the grounds of any licensed race meet;

     The alcohol concentration for persons on horseback may not be 0.02 percent or higher.

     (2) Engage in the illegal sale or distribution of alcohol;

     (3) Engage in the illegal sale or distribution of a controlled substance or possess an illegal controlled substance with intent to deliver;

     (4) Possess an illegal controlled substance;

     (5) Possess on the grounds of any licensed race meet any equipment, products or materials of any kind which are used or intended for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, or concealing an illegal controlled substance, or any equipment, products or materials of any kind, which are used or intended for use in injecting, ingesting, inhaling or otherwise introducing into the human body an illegal controlled substance; or

     (6) Refuse to submit to blood, breath, oral fluids, and/or urine testing, when notified that such testing is conducted pursuant to the conditions of WAC 260-34-030.

     Failure to provide a blood, breath, oral fluids, and/or urine sample when directed or intentional contamination of the sample by any person tested for the purpose of preventing accurate analysis of the sample, or other actions with intent to subvert the test, will be considered a refusal to submit to a test.

     "Controlled substance" or "drug" as used in this chapter means any substance listed in chapter 69.50 RCW or legend drug as defined in chapter 69.41 RCW. The presence of a controlled substance or drug in any quantity measured by the testing instrument establishes the presence of that substance for the purpose of this section. The fact that a licensee or applicant is or has been entitled to use a drug under the laws of the state of Washington will not constitute a defense against a violation for being under the influence of or affected by intoxicating liquor and/or any drug.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 09-03-009, § 260-34-020, filed 1/8/09, effective 2/8/09; 07-07-008, § 260-34-020, filed 3/8/07, effective 4/8/07; 06-07-064, § 260-34-020, filed 3/10/06, effective 4/10/06; 05-07-066, § 260-34-020, filed 3/11/05, effective 4/11/05; 89-13-006 (Order 89-02), § 260-34-020, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-020, filed 4/15/88.]

     (a) When a steward or commission security investigator finds that there is reasonable suspicion to believe that the applicant or licensee has used or is under the influence of alcohol and/or any drug.

     (b) When an applicant or licensee has a documented history of an unexplained positive test which indicates illegal drug usage or has a documented history of violating chapter 69.41, 69.45 or 69.50 RCW, WAC 260-34-020 or similar drug-related violation within five years of conviction or release from a correctional institution for that violation. The term "correctional institution" shall include any prison, jail or similar institution in this state or elsewhere.

     (c) When a steward or commission security investigator decides to test any licensee or applicant as a condition of any conditional or probationary license.

     (d) When any person is riding a horse on the grounds of a licensed racing association.

     (2) For licensees or applicants who are subject to a field screening urine, or oral fluid test under the provisions in this chapter, and whose test shows the presence of a controlled substance or alcohol, the field screening test results shall be confirmed by a laboratory acceptable to the commission.

     (3) The result of a test conducted with a preliminary breath test (PBT) instrument ((approved by the state toxicologist in chapter 448-15 WAC or other breath test equipment approved under chapter 448-16 WAC)), or oral swab, shall constitute evidence of a violation of these rules. The results of such a test may be considered for purposes of determining whether the licensee or applicant has consumed alcohol, the level of alcohol concentration, and whether the licensee or applicant has violated a prohibition on the use or consumption of alcohol established in a conditional license.

[Statutory Authority: RCW 67.16.020 and 67.16.040. 08-07-039, § 260-34-030, filed 3/13/08, effective 4/13/08. Statutory Authority: RCW 67.16.020. 07-03-064, § 260-34-030, filed 1/16/07, effective 2/16/07. Statutory Authority: RCW 67.16.020 and 67.16.040. 06-07-064, § 260-34-030, filed 3/10/06, effective 4/10/06; 05-07-066, § 260-34-030, filed 3/11/05, effective 4/11/05. Statutory Authority: RCW 67.16.040. 00-07-038, § 260-34-030, filed 3/6/00, effective 4/6/00. Statutory Authority: RCW 67.16.020 and 67.16.040. 89-13-006 (Order 89-02), § 260-34-030, filed 6/9/89; 88-09-033 (Order 88-02), § 260-34-030, filed 4/15/88.]

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